Articles

How to Obtain a Restraining Order Against a Violent Partner

Domestic violence is a serious issue that affects many individuals and families in Kenya. The Protection Against Domestic Violence Act, 2015 provides a legal framework to protect victims of domestic violence, including the issuance of protection orders, commonly referred to as restraining orders. These orders are designed to prevent further abuse by restricting the actions of the perpetrator. This article outlines the detailed process for securing a protection order under this Act, including procedural steps, requirements, and enforcement mechanisms.

The Protection Against Domestic Violence Act, 2015 is a landmark legislation in Kenya that recognizes various forms of domestic violence, including physical, emotional, sexual, and economic abuse. It applies to relationships such as marriages, cohabitation, family members, and even persons in close personal relationships. Under this Act, a victim of domestic violence can apply for a protection order to ensure their safety and prevent further harm.

A protection order is a court-issued directive that may prohibit the perpetrator from:

  • Committing further acts of violence.

  • Contacting or approaching the victim.

  • Entering the victim’s residence or workplace.

  • Engaging in any behavior that threatens the victim’s safety.

The Act ensures that victims have accessible legal remedies and emphasizes the role of the courts, police, and other institutions in enforcing these orders.

Step-by-Step Process for Obtaining a Protection Order

Securing a protection order in Kenya involves a clear legal process. Below are the detailed steps to follow:

1. Identify Eligibility for a Protection Order

To apply for a protection order, you must be a victim of domestic violence or someone acting on behalf of a victim (e.g., a parent, guardian, or social worker). The Act defines domestic violence broadly, covering:

  • Physical abuse (e.g., beating, assault).

  • Sexual abuse (e.g., forced sexual acts).

  • Emotional, verbal, or psychological abuse (e.g., threats, intimidation, humiliation).

  • Economic abuse (e.g., withholding financial support, controlling access to resources).

  • Harassment or stalking.

The applicant must demonstrate that they are in a domestic relationship with the perpetrator, such as being a spouse, partner, family member, or cohabitant.

2. Seek Immediate Safety

If you are in immediate danger, prioritize your safety by:

  • Contacting the police for emergency assistance (dial 999 or visit the nearest police station).

  • Seeking refuge at a safe house or shelter, such as those run by organizations like the Gender Violence Recovery Centre (GVRC) or FIDA-Kenya.

  • Consulting a trusted friend, family member, or professional for support.

In emergencies, you can request an interim protection order, which can be issued quickly to provide immediate relief until a full hearing is conducted.

3. File an Application for a Protection Order

To obtain a protection order, you must file an application at a Magistrate’s Court or High Court with jurisdiction over your area. The steps include:

a. Visit the Court

  • Go to the nearest Magistrate’s Court or High Court. Most courts in Kenya have a Gender Desk or Family Division to handle domestic violence cases.

  • You do not necessarily need a lawyer to file the application, as the process is designed to be accessible to all. However, legal representation from organizations like FIDA-Kenya or Legal Aid Centres can be helpful.

b. Complete the Application Form

  • Obtain the Protection Order Application Form (Form DV1) from the court registry or a legal aid organization.

  • Provide details about the incident(s) of violence, including dates, times, locations, and the nature of the abuse.

  • Specify the type of protection you seek (e.g., prohibiting contact, barring the perpetrator from your home).

  • If you are seeking an interim protection order, clearly state the urgency and immediate risk of harm.

c. Submit Supporting Evidence

  • Include any evidence of abuse, such as:

    • Medical reports or hospital records documenting injuries.

    • Police reports or OB (Occurrence Book) numbers from a police station.

    • Photographs of injuries or property damage.

    • Witness statements or affidavits from individuals who observed the abuse.

    • Text messages, emails, or other communications showing threats or harassment.

d. Pay the Filing Fee (if applicable)

  • In many cases, courts waive filing fees for domestic violence cases to ensure accessibility. Confirm with the court registry whether a fee is required.

  • If you cannot afford legal costs, seek assistance from legal aid organizations or NGOs.

4. Court Hearing

After filing, the court will schedule a hearing, typically within 14 days, though urgent cases may be heard sooner. During the hearing:

  • The applicant (or their representative) presents their case, including evidence of abuse.

  • The respondent (the alleged perpetrator) is served with a notice to appear in court and may present their defense.

  • If the respondent does not appear, the court may issue a protection order in their absence, provided there is sufficient evidence.

If you applied for an interim protection order, the court may issue it immediately without a hearing if there is clear evidence of imminent danger. This interim order remains in effect until the full hearing.

5. Issuance of the Protection Order

If the court is satisfied that domestic violence has occurred or is likely to occur, it will issue a protection order. The order may include conditions such as:

  • Prohibiting the respondent from committing further acts of violence.

  • Barring the respondent from contacting or approaching the applicant.

  • Ordering the respondent to vacate a shared residence.

  • Directing the respondent to provide financial support (e.g., maintenance for the victim or children).

  • Granting temporary custody of children to the applicant.

The protection order is typically valid for a specified period, such as one year, but can be extended upon application if the threat persists.

6. Serve the Protection Order

  • The court will serve the protection order to the respondent, typically through a court process server or the police.

  • Ensure the respondent is aware of the order, as ignorance of the order is not a valid defense for non-compliance.

7. Enforcement of the Protection Order

The Protection Against Domestic Violence Act, 2015 mandates strict enforcement of protection orders. If the respondent violates the order (e.g., by contacting or threatening the victim), the following steps can be taken:

  • Report the Violation: Contact the nearest police station or the court to report the breach. Provide evidence, such as text messages, call logs, or witness statements.

  • Arrest and Prosecution: Under Section 23 of the Act, violating a protection order is a criminal offense punishable by a fine of up to KES 100,000, imprisonment for up to 12 months, or both.

  • Seek Police Assistance: The police are obligated to assist victims, including escorting them to safe locations or enforcing the order.

Courts may also issue additional orders, such as evicting the respondent from a shared residence or ordering them to attend counseling or rehabilitation programs.

Challenges and Tips for Success

While the legal framework is robust, victims may face challenges such as:

  • Lack of Awareness: Many victims are unaware of their rights or the process for obtaining a protection order. Seek guidance from NGOs or legal aid organizations.

  • Fear of Retaliation: Victims may fear further violence from the perpetrator. Request police protection or an interim order to ensure safety.

  • Financial Constraints: Legal processes can be costly. Utilize free or subsidized services from organizations like FIDA-Kenya, Legal Resources Foundation, or Kenya Legal and Ethical Issues Network (KELIN).

  • Stigma: Social stigma may deter victims from seeking help. Confidentiality is maintained in court proceedings, and support groups can provide emotional assistance.

Tips for Success:

  • Document Everything: Keep a detailed record of all incidents of abuse, including dates, times, and evidence.

  • Seek Support: Engage with organizations like FIDA-Kenya, GVRC, or Coalition on Violence Against Women (COVAW) for legal and emotional support.

  • Follow Up: Ensure the protection order is served and enforced. Regularly communicate with the police or court if violations occur.

  • Know Your Rights: Familiarize yourself with the provisions of the Protection Against Domestic Violence Act, 2015 to understand your entitlements.

Additional Resources

  • Police Gender Desks: Available at most police stations to assist victims of domestic violence.

  • FIDA-Kenya: Offers free or low-cost legal aid for women (contact: +254 722 509 760 or info@fidakenya.org).

  • Gender Violence Recovery Centre (GVRC): Provides medical and psychosocial support (contact: +254 20 387 4151).

  • National Gender and Equality Commission (NGEC): Addresses complaints related to gender-based violence (contact: +254 20 272 7778).

Conclusion

Obtaining a protection order under the Protection Against Domestic Violence Act, 2015 is a critical step for victims of domestic violence in Kenya to secure their safety and well-being. By following the outlined steps (filing an application, presenting evidence, attending court hearings, and ensuring enforcement) victims can access legal remedies to prevent further abuse. Support from legal aid organizations, NGOs, and law enforcement is essential in navigating this process.

For professional legal assistance or guidance, contact us at +254 716 808 104 or info@lawguide.co.ke. Your safety is a priority, and help is available.